Inside America's Prisons

LE Magazine August 2004

Inside America's Prisons

There is a dark, dirty secret in America that virtually no one talks about. It all started in the 1970s with a series of media exposés. News programs like “60 Minutes” reported on violent criminals who committed vicious atrocities after serving only short prison sentences or avoiding jail altogether because of some legal technicality. The public became infuriated and demanded longer jail sentences and the elimination of technicalities that let clearly guilty criminals escape punishment.

Federal and state lawmakers responded to their constituents’ outcry by drastically lengthening prison sentences, eliminating the discretion of judges to give lenient sentences when warranted, and appointing judges who were known to be very tough on crime. In fact, being “tough on crime” became a prerequisite for legislators and governors to be elected and for judges to be appointed.

The benefit of these draconian actions is that violent and property crime levels have diminished somewhat, as more violent criminals are jailed and now serve longer sentences. An unintended consequence, however, is that these same harsh penal standards are being applied to those who are convicted of political crimes. The result is that the US has become the largest “police state” in the world. The numbers speak for themselves—the percentage of Americans incarcerated is greater than that of any other country in the world. This includes countries that the US government accuses of human rights abuses, such as Cuba, China, North Korea, Iraq (under Saddam Hussein’s rule), and Russia. The US locks up more of its citizens than any totalitarian country on Earth.1

NO ONE KNOWS ALL THE LAWS

State and federal legislators have passed so many laws that criminalize various behaviors that no attorney knows them all. Today, attorneys brought in on criminal cases sometimes have to ask the question: “Is the activity my client is accused of ‘against the law’?” Jurors are “instructed” by the judge as to the specific law(s) a defendant is accused of breaking because the average person has no idea if the alleged activity is legal or not.

Even prosecutors do not know all the laws and are not shy about admitting it. A few years ago, a private pilot flew his airplane over Havana, Cuba, as Fidel Castro was giving a speech. His purpose was to embarrass Castro. The Miami federal prosecutor’s response to this incident was that his office was going to research the law thoroughly in order to ascertain whether this pilot had engaged in an “illegal activity” by flying his plane over Cuba.

If defense attorneys and prosecutors do not know all the laws, and if a person can be incarcerated without there being a victim, what assurance do average citizens have that they will not fall into a trap that results in them serving a significant part of their life behind bars?

We use the term political crime broadly to generally define actions that the government declares illegal but do not directly harm other people. These political crimes can manifest as a result of intense industry lobbying to monopolize the marketplace, or in perceived public sentiment as expressed by a vocal minority group, or by events that are sensationalized by the media or politicians.

The problem is that in its zeal to aggressively prosecute anyone accused of doing anything “illegal,” the government has failed to differentiate between violent criminals and those whose actions produce no victims and in fact might someday be legalized.

Do a Good Deed, Go to JailChildren are taught that they will be punished if they do something “bad.” As adults, we perceive that people are jailed because they commit transgressions that deserve harsh punishment.

The reality is that Congress and state legislatures have passed so many laws that few people realize that a prosecutor could declare very innocent activities “illegal” and subject a citizen to imprisonment.

For instance, pretend that someone you cared for died from AIDS and left behind $10,000 of unused medications. You might very well know of other AIDS patients who cannot afford these drugs and you might be inclined to donate the medications to these needy individuals. Most people would consider such a donation an example of doing something “good.” Regrettably, the law prohibits prescription medications from being further dispensed, even if the drugs are given away to someone who will die because they do not have the money to afford them. So, in this case, doing something “good” could put a benevolent person behind bars.

Other political crimes may be considered to have more sinister motives, even though a large percentage of the population either engaged in them at some point in their lives or does not believe that the victimless activity warrants incarceration. The biggest shock America’s political prisoners face is that they never expected their acts would result in a lengthy prison sentence, especially since their actions never harmed anyone.

Jay Kimball, Political PrisonerWhen Jay Kimball discovered the benefits of deprenyl, he formed a company that produced a liquid version of the drug (deprenyl citrate) that he claimed was superior to the prescription-drug version (deprenyl hydrochloride). Jay at one point was selling his liquid deprenyl over the counter, but he capitulated when the FDA ordered him to stop selling his product, which cost about one-third the price of the prescription-drug variety. Jay continued, however, to export his liquid deprenyl to other countries.2,3

You might ask, what is wrong with exporting medicines to other countries? It turns out that this too is “illegal,” unless the FDA first approves you doing it. Americans who wanted Jay’s purportedly superior deprenyl began ordering it from other countries, and that is when Jay got into big trouble.

The company making prescription deprenyl did not like the low-priced competition, so it ran to the FDA demanding that Jay Kimball be stopped. The FDA did not move fast enough to suit the drug company, so it hired a private detective agency to conduct a criminal investigation independent of the government. The private detectives did a superb job of documenting that Jay was indeed shipping deprenyl to other countries. This thoroughly documented case was turned over to the FDA, which used the information supplied by the private investigators to raid Jay Kimball’s premises and eventually indict him on numerous criminal counts. There were no victims of Jay Kimball’s actions, just violations of FDA laws.

What happened after Jay was indicted is so unprecedented that few attorneys believe the story until they read it. Just from watching TV, most Americans are aware that defendants are entitled to an attorney and that if they cannot afford one, an attorney will be appointed and paid for by the government. In fact, the government is often quite generous in providing a free attorney for violent street criminals. If you murder someone, the government will sometimes pay an expert criminal defense attorney so that the “incompetent counsel” argument cannot be used to overturn a death-penalty sentence.

Jay did not kill anyone, but he was denied an attorney for his trial. Jay’s problem was that he was not indigent, as are most street criminals. Jay had some money to feed his wife and 13-year-old son and to provide housing for them. The federal government demanded that Jay liquidate all of his assets to pay for an attorney, or else represent himself in court. That would have meant that his wife and son would have to live on the street.

The federal prosecutors offered him a relatively lenient sentence if he pleaded guilty, but Jay defiantly stated that he had not harmed anyone and did not believe he did anything wrong. The federal judge told Jay that if he did not plead guilty, he faced up to three years in prison if convicted. Jay pleaded for an attorney, but since he was not flat broke, the government would not pay for one. Jay thus had to represent himself against the federal prosecutors, the FDA, and the drug company’s private detectives.

Having never practiced law, Jay did an abysmal job of defending himself and managed to get the judge to absolutely despise him in the process. After the jury found Jay guilty, the judge sentenced him to an astounding 13 years in jail, citing Jay’s conduct in trial as a reason to add the 10 years.

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